A Plunge From Moral Heights

Attorney General John Ashcroft, whose Justice Department prepared the memos—one of them running to 50 pages and signed by Jay S. Bybee, then head of the Office of Legal Counsel—assured the Senate the other day that the memos are of no consequence. They were only internal Justice Department stuff, the scribblings of lawyers and—most important—the president has not “directed or ordered” torture, Ashcroft said. In another administration, such an assurance would be enough for me, but given this one’s cavalier approach to civil liberties, I have to note that “directed” or “ordered” is not the same as condoned. That’s what I wonder about.

That’s what I wonder about too, and this much-sited passage from WSJ deserves a second look:

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a “presidential directive or other writing” that could serve as evidence, since authority to set aside the laws is “inherent in the president.”

The widespread reaction, and the one we had, was that not only is that utterly false, it strikes directly at what separates a democracy from a monarchy. But a follow-up question is this:

Was the White House legal counsel really envisioning a scenario in which somebody would get caught committing war crimes, and then Bush would step in and say, “It is all ok, I signed a directive allowing for torture, as is it is my Constitutional prerogative to set aside laws at will. So that indivdual is innocent, and anybody who has a problem can point the finger at me”?

Yeah, right. The President’s actual behavior when their hypothetical became reality, to blame a few bad apples and call it a day, would have been as predictable then as it is obvious now. While certainly the memo seems to be making that ludicrous “unlimited power of the president” argument in earnest, it seems they were much more likely telling Bush not to issue such a directive by telling him what would happen if he did. That way, John Ashcroft could go before the Senate and say this until he turned blue in the face:

... I want to confirm that the president has not directed or ordered any conduct that would violate the Constitution of the United States, that would violate any one of these enactments of the United States Congress or that would violate the provisions of any of the treaties as they have been entered into by the United States, the president, the administration and this government.

A sad day when even a memo advising torture to the President overestimates him.